Feature Article

Forfeiture: A Threat To Every American

James Bovard

Few areas better illustrate the vast sweep of government power than asset forfeiture laws. Forfeiture --- which is simply a nice word for government seizure of private property --- has increased by over 1500 percent since 1979. Federal agents can confiscate private property with no court order and no proof of legal violations. Law enforcement officials love forfeiture laws because a hefty percentage of the takings often go directly to their coffers.

These forfeiture laws have sometimes tested the creativity of Supreme Court justices. A 1996 landmark case involved a Detroit steelworker who got nabbed after he picked up a prostitute; cops seized his car. The car turned out to be co-owned with his wife, who did not authorize her husband to use it for any such escapade. But the Detroit city government confiscated the car anyway.

This case went all the way to the Supreme Court --- where the Court surprised most observers by upholding the seizure of the car. Chief Justice Rehnquist based his decision heavily on an 1827 case involving the seizure of a Spanish pirate ship that had attacked U.S. ships. Regrettably, Rehnquist did not deign to explain the legal equivalence of piracy in the 1820s and prostitution in the 1990s.

Justice Stevens issued a dissent that vividly portrays how much arbitrary power the Supreme Court is granting government agents:

For centuries prostitutes have been plying their trade on other people's property...in palaces, luxury hotels, cruise ships, college dormitories, truck stops, back alleys and back seats. As far as I am aware, however, it was not until 1988 that any State decided to experiment with the punishment of innocent third parties by confiscating property in which, or on which, a single transaction with a prostitute has been consummated.

Late last year, the Supreme Court heard another asset forfeiture case --- one that involved $357,144 seized from a Syrian immigrant who was searched at the Los Angeles Airport prior to heading back to Syria. The money consisted of profits from his two gas stations and money from relatives; both a federal district and a federal appeals court concluded that the money was honestly acquired. Yet, the Customs Service insists the fact the money is untainted is "not relevant" and that the federal government has a right to confiscate the money solely because the immigrant failed to fill out Customs Service form 4790 disclosing he was taking more than $10,000 in cash out of the country.

At the oral hearings before the Supreme Court, Irving Gornstein, arguing the case for the Clinton administration, insisted money that is not reported to the Customs Service "and is more than $10,000; this is dangerous money. We have a dangerous situation on our hands..." One wonders, if currency is so inherently dangerous, then why does government print up so much of it?

The Customs Service confiscated $56 million from outbound travelers in 1996. Recent immigrants are among the people most exposed to such penalties, since, coming from nations with very corrupt customs services, they are often leery of telling officials how much cash they have. Indeed, one federal judge noted that Bajakajian's behavior "grew out of...distrust for the Government." According to the Clinton administration view, because someone does not trust the government, the government somehow acquires the right to rob the person.

Gornstein claimed that the federal government had a right to confiscate practically any property involved in a violation of law. When pressed on this issue by a couple of the Supreme Court justices, Gornstein conceded: "I would except that one small category of cases where perhaps the property is involved in what might be a minor infraction such as a parking offense." I am just guessing now --- but my hunch is that this Gornstein guy is going to do very, very well in the Clinton administration. According to the Clinton administration, Americans now stand in the same relation to government as English peasants stood to the King prior to Magna Carta (1215) --- when the King's agents could automatically confiscate all the property of almost anyone convicted of any crime.

Some of the Clinton administration's arguments bordered on the paranoid. The administration brief declaimed: "The forfeiture of undeclared currency... both encourages persons to inform the government that they are transporting more than $10,000 in cash outside the country and prevents such money from being used in circumvention of requirements in the future." In other words, if the government grabs the money, it will not face the burden of stealing the same money from the same traveler on his next trip. On the same reasoning, the government could confiscate everyone's bank account today in order to prevent them from making any illicit purchases in the future.

The Supreme Court --- by the narrowest of margins - rejected this medieval view of the relation of governments and citizens. Justice Clarence Thomas, writing for the majority in a 5-4 split, declared that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Thomas noted that the crime in question "was solely a reporting offense." The maximum fine Bajakajian faced under federal sentencing guidelines was $5000 --- and the government suffered no harm because he failed to fill out the form.

Justice Thomas's opinion shows a refreshing, non-groveling attitude towards the federal statute book. This is the first time the Supreme Court has rejected a fine as excessive. This is also the first time that Thomas has sided with the four most liberal justices on the court --- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. The court's decision could signal a landmark shift --- finally combining respect for property rights with traditional liberal concerns on civil liberties.

Justice Thomas also stressed that "the theory behind such forfeitures was the fiction the action was directed against 'guilty property,' rather than against the offender himself." This is the absurdity at the heart of the forfeiture laws --- the notion that since government is only grabbing property, and since wads of cash, or boats, or houses have no legal rights, then forfeiture cannot violate the Bill of Rights. This is another doctrine borrowed from medieval times which the Court, on the eve of the 21st century, is beginning to reject.

Justice Thomas noted that the forfeiture of all of the traveler's money "bears no articulable correlation to any injury suffered by the Government." This thought was not developed, but it is a fascinating standard by which to assess government punishment of non-violent behavior. If it is widely adopted, it could undermine harsh penalties for many consensual, non-violent crimes. But it is unlikely the Supreme Court would veer that close to what politicians define as anarchy.

The dissent --- written by Justice Anthony Kennedy and joined by Chief Justice William Rehnquist, Antonin Scalia, and Sandra Day O'Connor --- repeatedly invoked a 1381 English statute that authorized the confiscation of all gold and silver exported without a government license. (Maybe we should be grateful that some of the Supreme Court justices don't invoke other laws from that same century that called for the burning of heretics?) Kennedy referred over a dozen times to smuggling and smugglers --- as if anyone who did not fill out a government form automatically becomes a pirate. Unfortunately, some conservative justices who, in other cases stand up for property rights, also seem to believe that whatever is good for law enforcement is good for America. And since law enforcement agencies desire near-unlimited power to seize property, that must be in the national interest.

Kennedy declared, "Forfeiture of the money involved in the offense would compensate for the investigative and enforcement expenses of the Customs Service." Thus, if the government decides to spy on you, government officials become entitled to seize your property to compensate them for the cost of invading your privacy.

Justice Kennedy also bewailed, "By affirming, the majority in effect approves a meager $15,000 forfeiture." This is reminiscent of President Nixon's 1972 comment that the United States was a "poor helpless giant" in dealing with foreign aggressors. The dissenting Justices apparently never considered whether government deserved a damn cent of the man's cash. Justice Kennedy & Co. presumed that government agents are entitled to seize whatever private property congressmen permit --- that the question of the justice of a seizure is determined by the laws of Congress, not by basic decency.

Justice Kennedy justified the law authorizing the Customs Service's seizure: "Because of the problems of individual proof, Congress found it necessary to enact a blanket punishment." The federal statute books in recent decades have swollen with "blanket punishments" that destroy people's lives regardless of whether individuals have done any harm to their fellow citizens. But the Supreme Court is, in theory, supposed to limit the number of lives destroyed for politicians' photo opportunities --- for the chance for congressmen to show up at the White House signing ceremony for a new crime bill. This is the same way the government is fighting Medicare and Medicaid fraud --- by assuming that it must go out and round up the usual suspects and prove to the American public that the bureaucrats can be avenging angels.

The Supreme Court's decision in the Bajakajian case should encourage Americans to rethink their attitudes towards the penalties Congress enacts and government agents inflict. Too many federal agencies possess the power to destroy people's lives for mere paperwork violations. The more government forms citizens are required to fill out, the more pretexts government agents have to destroy the lives of any citizen who failed to cross every "t" and dot every "i".

Forfeiture policies achieved national scandal status beginning in the early 1990s. Members of both parties on the House Judiciary Committee kept promising to fix those laws --- but somehow never quite get around to it. Rep. Henry Hyde, the chairman of the House Judiciary Committee, started a campaign several years ago to fix some of the problems in these laws. But the Justice Department leaned on Hyde in 1997 --- and Hyde abandoned his own bill and adopted the Clinton administration bill to make the laws even worse. Hyde subsequently switched positions again --- but effectively too late to get changes enacted in the last Congress.

The forfeiture laws are one of the most flagrant constitutional abuses Americans now suffer --- but it seems that the only "constitutional" issue which interests many congressmen is their amendment to ban flag burning. Congress's failure to reform forfeiture laws is a reminder why all Americans must be on their guard against their self-appointed political saviors.


James Bovard is the author of Lost Rights: The Destruction of American Liberty (1994) and the forthcoming Freedom in Chains: The Rise of the State & the Demise of the Citizen (St. Martin's, February 1999).

Originally published in the Medical Sentinel 1999;4(2):56-57. Copyright © 1999 Association of American Physicians and Surgeons (AAPS).